quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
way to accept the desired jail time, or negotiate a plea to recidivist under the influence rather<br />
than possession. A plea to being under the influence rather than possession will avoid these<br />
issues, because being under the influence is not an aggravated felony even if a prior drug<br />
conviction is pleaded or proved.<br />
If a first conviction <strong>for</strong> simple possession is eliminated by rehabilitative relief under<br />
Lujan-Armendariz, then the second possession should become the “first” <strong>and</strong> will not be an<br />
aggravated felony. A third conviction should become the worrisome “second,” <strong>and</strong> will be<br />
classed as an aggravated felony only if the Ninth Circuit decides to change its rule.<br />
7. Remember that if the record of conviction does not identify the specific controlled<br />
substance, a conviction <strong>for</strong> offenses under Calif. H&S §§ 11377-11379 <strong>and</strong> 11350- 11352 is<br />
not a controlled substance offense <strong>for</strong> <strong>immigration</strong> purposes, <strong>and</strong> is neither an aggravated<br />
felony nor a deportable or inadmissible drug conviction. This will not work <strong>for</strong> offenses such<br />
as possession of paraphernalia, maintaining a place where drugs are used or sold, or sale of a<br />
false “look-alike” controlled substance. See Part B, supra.<br />
8. Drug addiction <strong>and</strong> abuse. A person is inadmissible if she is a “current” drug addict or<br />
abuser, <strong>and</strong> deportable if she has been one at any time since admission to the United States.<br />
Dispositions such as drug court or CRC placement that require admission of drug abuse or<br />
addiction will trigger these grounds. While in various <strong>immigration</strong> contexts more relief<br />
might be available to someone deportable <strong>for</strong> this than <strong>for</strong> a straight conviction, this still can<br />
have serious consequences <strong>and</strong> each case should be analyzed separately.<br />
Case examples. These examples illustrate the rules under current law, <strong>and</strong> assumes that<br />
the proceedings described take place within states under the jurisdiction of the Ninth Circuit.<br />
You may want to use the drug plea Chart that follows this Note.<br />
Example 1: Sam is convicted of felony simple possession of heroin in state court, his<br />
first controlled substance offense.<br />
Aggravated felony? This is not an aggravated felony in <strong>immigration</strong> or federal criminal<br />
proceedings under Lopez v. Gonzales. No simple possession conviction without drug priors is an<br />
aggravated felony, other than possession of flunitrazepam or more than 5 grams of crack.<br />
Deportable? As a conviction of an offense relating to a federally recognized controlled<br />
substance, it makes Sam deportable <strong>and</strong> inadmissible. Rehabilitative Relief? If it was a very<br />
first drug offense, Sam can eliminate a simple possession conviction <strong>for</strong> <strong>immigration</strong> purposes<br />
by “rehabilitative relief” such as withdrawing the plea under a deferred entry of judgment,<br />
Proposition 36 or PC § 1203.4 provision.<br />
was not pleaded <strong>and</strong> proved in the subsequent possession prosecution, the possession conviction was not an<br />
aggravated felony). For further discussion, see Vargas, “Practice Advisory: Multiple Drug Possession Cases after<br />
Carachuri-Rosendo v. Holder” (June 21, 2010) at www.immigrantdefenseproject.org/webPages/practiceTips.htm.<br />
N-76 Immigrant Legal Resource Center